Examination of Witnesses (Questions 560
TUESDAY 10 MARCH 1998
Sir Patrick Cormack
560. I have not finally made up my mind and
it would be very wrong to do so until the Committee has heard
all the evidence and deliberated. The direction in which I am
moving is this, that Parliament should remain in charge of its
own affairs, of its Members, but that if there is a case which
is manifestly so serious, the damage done so great, and the issue
so complex, that Parliament should in that instance specifically
and absolutely waive privilege in respect of that particular Member
and hand him or her over to the civil authorities, then that should
be done, but, to use the awful jargon, on a one-off basis rather
than by a general waiver of privilege. That is the direction in
which I am moving at the moment.
A. Well, Sir Patrick, if you say that Parliament
should decide, I agree with you, but the matter would have to
be raised in Parliament as a matter of privilege and the Privileges
Committee would have to decide. I would be absolutely in favour
of Parliament deciding. I would not want that responsibility put
upon the Speaker.
561. No, I am not suggesting for a minute that
it should fall on the Speaker, but whether there should be a panel
of senior Privy Councillors who advise the Privileges Committee
is another issue and is something we should possibly consider.
I do think that it should be the House that makes the decision
in a specific instance and not the Member who tries to waive it,
as we had that bad example of monkeying around with the law on
defamation a couple of years ago. It should be the House that
decides that here is a case that is too complex and too serious
and therefore we are handing it over to the civil authorities.
A. The House must always be sovereign and if
the House so decides then that is it.
562. As you understand it, would the House have
power to waive its privilege under Article 9?
A. The House has power to do anything. The House
was asked to waive its privilege, was it not, in the case of Hamilton?
Sir Patrick Cormack
563. Yes. That was the bad example I referred
to because he got a change in the law.
A. I have to say that I voted against it in
the House of Lords because it was my view that no Member really
has a right to waive his individual privilege. It is a matter
for the House to decide. In that particular case, although Mr
Hamilton decided he wished to waive his privilege, I think others
who were involved decided they did not.
Lord Archer of Sandwell
564. If the House were to have to consider whether
to waive its privilege in a particular case of that kind and therefore
leave the matter to the courts, could that be done without a full
scale debate? I follow that you would refer it to the Committee
of Privileges or something of that sort, but if it were highly
emotive and there was likely to be a full scale debate, would
that make it very difficult then for the courts to consider this
A. I think it would have to be subject to a
debate. The Committee of Privileges has no right to circumvent
Parliament and there would be cries of "point of order"
on the floor. In a hypothetical case no doubt a Member would have
some friends who would wish to stick up for him and demand that
natural justice was seen to be done. There have been a number
of other cases which have really caused me concern, not least
the John Browne case. You will remember that. At that time there
was hardly a lawyer on either side of the House who did not come
knocking on my door at the Speaker's house saying, "This
is unfair, Mr Speaker. This man is not able to send for witnesses
or question anybody. It is a kangaroo court. It is unfair and
you have got to stop it, sir." I had no power to stop it
at all, but our system is that it went to the Committee and the
Committee decided. Unfair or not, I had to say, "This is
our procedure." I do not think that the Committee could decide
the thing without coming back to the House. It would mean a debate
and it would create problems.
565. Are we not likely to get ourselves into
a bigger mess in the sense that if there is a debate in the House
of Commons the friends of the Member concerned will all be beating
their chests and making the point and debating the issue that
it is going to go before the court in the full glare of publicity,
television, etc. If it was decided that way, the courts could
be in a mess because it has already been in the papers and all
over the television. That is probably a worse state of affairs
than it is at the moment.
A. I think that is absolutely right. These are
very difficult questions that your Committee has to resolve.
Sir Patrick Cormack
566. But there is no tidy solution, is there,
because if we maintain the status quo, if things carry on as they
are, every report of the Committee has to be debated in the House,
and if we move in the direction which the Home Secretary would
appear to wish us to move, then we waive our privilege completely
and the implications of that, Members being subpoenaed to give
evidence and so on, are fairly considerable, and certainly no
tidy solution. If we move in the direction that I think I will
advocate, I accept that it is not perfect but I just feel it preserves
the privileges of the House better and at the same time acknowledges
the public disquiet rather more satisfactorily than maintenance
of the status quo or adoption of what the Home Secretary would
have us do. Do you think that is a fair position?
A. It is a compromise, Sir Patrick, but I think
it is a better solution than, effectively, trial by Parliament
on the television and then going to the courts. The whole thing
would be prejudiced, it seems to me, so that would be manifestly
567. I am not sure, with the greatest respect
to Sir Patrick, you have understood what he is suggesting. As
I understand it, Sir Patrick is suggesting that in a particular
case, a very grave case, the matter would be aired on the floor
of the House; there would be a motion down that, in that particular
case, the man should be handed over to the civil authorities.
Mr Michie has pointed out all the dangers of that proceeding because,
in fact, you would not have a fair trial at all, in that there
would have already been a trial on the floor of the House on the
debate on the motion before the man was handed over to the civil
authorities. You mentioned earlier, Lord Weatherill, that we are
living in a more open society. You would be the first to acknowledge
that there was real public concern about certain goings-on in
the last Parliament. Is not, in fact, the only sensible and tidy
solution to say that, when somebody offers a bribe and somebody
accepts a bribe, then both the offeror of the bribe and the acceptor
of the bribe should be tried by the ordinary courts of the land?
There is only one alternative to that (and it is a perfectly tidy
solution) which is that both the offeror of the bribe and the
acceptor of the bribe should be tried by Parliament. Would you
like that, and what powers of punishment would then be in the
hands of Parliament to satisfy the public? Would Parliament be
able to send down the offeror of the bribe for the three or four
years which he would richly deserve?
A. We have already, have we not, agreed that
Members of Parliament should be subject to the same laws that
we pass. I feel that very strongly and I would not be happy with
a double trialwhich is effectively what this is. So, in
that hypothetical case (which I hope never ever will arise) if
somebody had offered a bribe and somebody had taken it, manifestly
there is a good case for trying that once in the criminal court
but, of course, that means then that evidence has to be taken
from others here in Parliament and from the chief whip: "What
did you know about it?", and all that. It is an extremely
difficult decision to make. Nevertheless I suppose, in that hypothetical
case, it is only right and also I think fair to the Member concerned
if he is only tried once.
Sir Patrick Cormack
568. I am sorry but we are getting into difficulties
here. I cannot accept that we waive the Parliamentary stage entirely.
If it is very easy to accuse a public figure of all manner of
thingsand it is very easy to accuse a Member of Parliament
of all manner of things. There are malicious people out there
who will do that, and, without wanting to be too particular, some
of the wild allegations made by a certain well-known individual
in recent weeks (of which I know not the truth) illustrate the
point I am makingif any accusation is made against a Member
of Parliament, whoever that Member may be, it is incumbent upon
the authorities of the House at least to look at that in a preliminary
manner at the very least. Take the case of Mr Hamilton recently.
The Standards and Privileges Committee came to the conclusion
that, had Mr Hamilton remained a Member of Parliament, the offences
of which they judged him guilty were not sufficient to merit his
expulsion from Parliament but they would have merited a fairly
severe suspension. That is what they said. Therefore, if they
had not merited his expulsion, it is very unlikely they would
have merited his trial before a jury. I do think it is important
that there has to be this preliminary look at things by the authorities
of the House and only if the case is very complex and there are
accusations of profound seriousness should it be handed over for
ultimate trial in the courts. Of course, there is an element of
untidiness in this solutionas in any other. There is an
element of double trial, if you like. There has to be but then,
by being a Member of Parliament, you are putting yourself into
a special position and you have to accept that there are, in general
terms, some privileges and some drawbacks that go with that position.
569. This is one of them.
A. I have to say to the Committee that these
are questions put to me as a non-lawyer and as an individual,
not as a former Speaker really, because I do not think I have
any responsibility for that as a former Speaker. Could I just
be reminded of what actually happened in the Greenway case because
it was alleged that he had raised a Parliamentary question as
a result of having accepted some form of bribe and that went to
the criminal courts: it was not tried by Parliament.
Lord Archer of Sandwell
570. He was tried and acquitted.
A. But in the hypothetical case that Lord Waddington
has put, would not the same rules have applied?
Lord Archer of Sandwell: Yes.
571. It was tried on the basis that the judge
took the view that it did not involve proceedings in Parliament
as such, and the case then collapsed on some other ground.
A. But does not that then more or less answer
Chairman: It goes some way, perhaps. We are
in some danger of putting our own internal arguments in front
of you, Lord Weatherill.
572. The only thought that occurs to me in relation
to this matter is this: we have been over the trigger argument
on several occasions, but a lot surely depends on the nature of
the motion that is put before the House of Commons. If we had
a set of criteria (which is implicit in what you are saying, Sir
Patrick) by which we determine whether or not the Commons was
competent to deal with a casefor instance on the question
of complexity, etc, and some of the things that have been referred
tothe debate would not be on the offence itself but on
whether the allegation produced a case that met the criteria.
This would enable the Chairman to limit the debate; it would confine
Members of Parliament in what they would be allowed to say, and
it might be a procedural way through this.
A. It might well be a procedural way through
Sir Patrick Cormack: I think that is right.
573. I think we ought to move off this area
of questioning now. Can I ask you two questions before we do:
first of all, is there (as has sometimes been suggested) a danger
that, if Parliament embarks on a preliminary inquiry of this sort,
it may appear at least to be governed by party political considerations?
A. In a highly party political atmosphere the
answer to that is quite likely "Yes", although I think
I may qualify it by saying that the collective wisdom of Parliament
is very great. I have always found that the collective wisdom
of Parliament would override party political considerations in
general. I really do think that.
574. Secondly, what, if anything, would you
suggest or recommend we do about the Defamation Act and amendment
of the Bill of Rights?
A. Could you just expose it a little more for
me? "Defamation" in what context?
575. It is section 13 which gave a Member the
right to waive his privilege.
A. What was the case?
Chairman: The Hamilton case.
Sir Patrick Cormack
576. This is the waiver to which you referred
when Hamilton persuaded the House (much against the better judgment
of many people, I suspect, but nevertheless the House so voted)
to amend the defamation legislation going through at that time.
A. Have I not dealt with that?
577. Yes, you have, I think.
A. My feeling was that that was not a good decision.
I do not think that an individual Member has any right to amend
legislation for his own benefit or what he judges to be his own
benefit. That is entirely a matter for the House and should not
have been taken. I noted with very considerable interest (because
I followed the debate in the House of Lords) that, although the
amendment was proposed in the House of Lords by one of the Law
Lords, when the vote was taken he abstained.
578. Were there other issues concerning the
privileges of the House that caused you concern or difficulty
during your period of Speaker which it would be helpful for us
to know about?
A. Anything, Lord Chairman, that touched upon
individual Members of Parliament was of major concern to me. I
have already mentioned the John Browne case but there were others
because, of course, what happens in practice is that Members of
Parliament have a right of access to the Speaker to discuss any
matter of concern to them. It is one of the great myths that the
Speaker's job is a lonely one. I have to say I think it was fairly
well known to my colleagues that I dispensed love and whisky after
ten o'clock and I was very busy. People came up after ten o'clock
to discuss their personal problems and sometimes their family
problems. That is why Speakers should never, ever write their
memoirsthey are recipients of far too many confidences.
But the Browne case did cause me concern because it appeared to
me, in terms of natural justice, to be manifestly unfair. On the
other hand, the system is that he was judged by his peers and
was so judged: I had to explain that to him.
579. Do you think the House of Commons is too
sensitive of its privileges?
A. It must not be too sensitive of its privileges,
I think, in this modern age. It would not be to the credit of
Parliament if cases arose whereby Members of Parliament were not
subject to the same laws as the members of public for whom we
pass the laws. We must keep them. The privilege of freedom of
speech seems to me absolutely sacrosanct because the privilege
of speaking in Parliament also reflects, of course, the privilege
of speech that a constituent has to his Member. He raises matters
on his or her behalf.